Narendra Sharma

Hon’ble Supreme Court in Mohd.Akram Ansari Vs. Chief Election Officer & Ors. {2008 (2) SCC 95 : 2007 (12) SCR 901; Date of Decision : 04-Dec-2007} has observed that it is not ordinarily open to the party to file an appeal and seek to argue a point which even if taken in the petition or memorandum filed before the Court below, has not been dealt with in the judgment of the Court below. The party who has this grievance must approach the same Court which passed the judgment, and urge that the other points were pressed but not dealt with. Para 14 of the judgment is reproduced below for ready reference.

“14. In this connection we would like to say that there is a presumption in law that a Judge deals with all the points which have been pressed before him. It often happens that in a petition or appeal several points are taken in the memorandum of the petition or appeal, but at the time of arguments only some of these points are pressed. Naturally a Judge will deal only with the points which are pressed before him in the arguments and it will be presumed that the appellant gave up the other points, otherwise he would have dealt with them also. If a point is not mentioned in the judgment of a Court, the presumption is that that point was never pressed before the learned Judge and it was given up. However, that is a rebuttable presumption. In case the petitioner contends that he had pressed that point also (which has not been dealt with in the impugned judgment), it is open to him to file an application before the same learned Judge (or Bench) which delivered the impugned judgment, and if he satisfies the Judge (or Bench) that the other points were in fact pressed, but were not dealt with in the impugned judgment, it is open to the concerned Court to pass appropriate orders, including an order of review. However, it is not ordinarily open to the party to file an appeal and seek to argue a point which even if taken in the petition or memorandum filed before the Court below, has not been dealt with in the judgment of the Court below. The party who has this grievance must approach the same Court which passed the judgment, and urge that the other points were pressed but not dealt with.”

Note: The views expressed are my personal and a view point only.

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0 Comments

  1. Nisban says:

    Those having the most degrading experience of appearing as a party or a representative before all the appellate and assessing authorities created by/under IT Act are aware fully of this usual method on a dailky basis just to extract bribes. And, none of these creatures of the Act would ever bother to cite even the citations relied upon by the parties-both revenue and assessees-and, even if they do, that is decided on the bribe paid or not paid by the tax payer. Citing of jurisdictional High Court’s or or Supreme Court’s orders is considered as a crime by and insulting to all the “fact finding authorities”.

  2. shyam gupta says:

    The problem with review is that when a judge/presiding officer has taken a stand he normally justifies his stand and includes only those arguements which substantiate his stand. He deliberately ignores other points. On a appeal/application for review he only dismisses the same , with just a statement as saying all the issues raised have been dealt with and does not even mention the issues as that would mean that he will have to deal with them.

    What can be done in this case and how the court of further appeals would look at this situation.

  3. vswaminathan says:

    On the first blush,it is seen that the write-up simply sums up the view taken by the SC in the cited judgment.As such, the purport of the ‘Note’, which presumably is that of the Author, is not reasdily understood.

    vswami

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